People v. Hills

2023 IL App (4th) 220141-U

• Court: Appellate Court of Illinois
• Decided: January 9, 2023
• Docket: 4-22-0141
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220141-U This Order was filed under FILED NO. 4-22-0141 January 9, 2023 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County JASON L. HILLS, ) No. 18CF450 Defendant-Appellant. ) ) Honorable ) John C. Wooleyhan, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Doherty concurred in the judgment.

ORDER ¶1 Held: The appellate court reversed and remanded, holding the trial court erred in summarily dismissing defendant’s postconviction petition because defendant stated the gist of a claim that his trial counsel was ineffective for failing to investigate the State’s expert’s opinion that the victim suffered from post-traumatic stress disorder.

¶2 Defendant, Jason L. Hills, appeals the summary dismissal of his postconviction

petition at the first stage of postconviction proceedings. Defendant contends the trial court erred

in finding that the five claims of ineffective assistance of trial counsel raised in his petition

should have been raised on direct appeal and were consequently forfeited. Defendant further

argues he stated the gist of a constitutional claim of ineffective assistance of counsel with respect

to all five claims asserted in the petition. We reverse and remand.

¶3 I. BACKGROUND ¶4 Defendant was charged with two counts of criminal sexual assault (720 ILCS

5/11-1.20(a)(2) (West 2016)) in that he placed his penis in J.A.W.’s vagina and anus while

knowing she was unable to give knowing consent.

¶5 At trial, J.A.W. testified that on the night of the incident, she allowed defendant to

come to her residence to use her shower. She had socialized with defendant in the past. J.A.W.

told defendant she was having sciatic nerve problems, and he brought her two pills, which he

indicated were ibuprofen and tramadol. She took both pills. J.A.W. testified she also took three

“little sip[s]” of whiskey defendant had brought. J.A.W. and defendant sat on the couch and

talked for a while, and J.A.W. became tired. J.A.W. looked at her phone and saw that it was 2:11

a.m. J.A.W. did not remember anything else until her son woke her up later that morning. When

J.A.W. woke up, she was lying on her back, naked, and covered by a robe. She tried to stand, but

she was dizzy, disoriented, and found it difficult to walk. She observed her front door was

unlocked. She then went into the bathroom and observed that it was in disarray, the floor was

wet with water, and there were towels and clothes that did not belong to her. Later that day,

J.A.W. went to the hospital and underwent a sexual assault evidence collection evaluation. She

noticed at that time her legs and arms were bruised “pretty badly.” She did not have these bruises

prior to defendant’s visit and did not know how she got them. Later, J.A.W. remembered

defendant dragging her from the bathroom to the couch on the night of the incident.

¶6 The nurse who performed J.A.W.’s sexual assault examination testified J.A.W.

told her that she consumed three shots of whiskey, an ibuprofen pill, and a tramadol tablet given

to her by a friend on the evening of the incident. The nurse testified tramadol was a pain

medication that should not be taken with alcohol because alcohol “heighten[ed] the effects” of

-2- the medication. The nurse collected vaginal and anal swabs and observed J.A.W. had multiple

bruises and scratches.

¶7 The State presented forensic evidence showing the vaginal and anal swabs

collected during J.A.W.’s examination contained deoxyribonucleic acid (DNA) for which

defendant could not be excluded as a contributor. With regard to the most complete male DNA

profile, the likelihood that someone other than defendant was the contributor was 1 in 470

sextillion.

¶8 Malinda Vogel, a licensed clinical professional counselor, testified as an expert in

the field of clinical psychology with training in the areas of trauma and post-traumatic stress

disorder (PTSD). Vogel testified that the state’s attorney’s office referred J.A.W. to her for a

psychological evaluation approximately two years after the incident occurred. During the

evaluation, J.A.W. reported she had been raped. J.A.W. discussed the details of the sexual assault

and indicated she did not remember some of the incident. According to Vogel, J.A.W.’s

description of the sexual assault qualified as a traumatic event for purposes of a PTSD diagnosis.

J.A.W. also described having the following symptoms of PTSD: intrusive experiences due to the

sexual assault, avoiding things that reminded her of the sexual assault, negative changes in her

mood, and changes in her level of physiological arousal. During her testimony, Vogel gave

specific examples of each of these symptoms. Based on her evaluation, Vogel found the sexual

assault had a severe impact on J.A.W.’s life. After considering all this information, Vogel

concluded that J.A.W. suffered from PTSD. Vogel’s evaluation report was admitted into

evidence.

¶9 On cross-examination, Vogel stated she met with J.A.W. twice for one hour each

time in conducting her evaluation. J.A.W. was her only source of information. Some of her

-3- questions to J.A.W. specifically related to the symptoms of PTSD. She did not use any

standardized assessment tools but rather used an interview and evaluation process, which she

believed was the best way to approach the evaluation. Determining whether J.A.W. was a

reliable reporter of events was part of the interview process. In assessing the reliability of a

person’s account, Vogel stated she considers whether there has been consistency in reporting,

how the situation could be perceived by others, and whether the subject is psychotic or

disoriented.

¶ 10 Defendant testified that J.A.W. invited him to her house to use her shower on the

night of the incident. She also asked him to bring her some pills for her back pain, and defendant

brought her two ibuprofen tablets. Defendant and J.A.W. sat in her living room and talked for

several hours. They both had two or three shots of whiskey. J.A.W. did not seem intoxicated.

Defendant and J.A.W. then engaged in consensual sexual activities in both the shower and

J.A.W.’s bedroom. Afterward, J.A.W. walked back to the couch and draped defendant’s jacket

over her. Defendant noticed the sun was starting to rise, and he told J.A.W. she needed to get up.

They had a brief conversation, but J.A.W. did not get up. Defendant took his jacket and draped

J.A.W.’s robe over her. He then left.

¶ 11 The jury found defendant guilty of both counts, and the trial court imposed

consecutive sentences of five years’ imprisonment on each count.

¶ 12 On direct appeal, defendant argued the State failed to prove him guilty beyond a

reasonable doubt and the trial court erred by giving Illinois Pattern Jury Instruction, Criminal,

No. 3.14 (approved Oct. 17, 2014). People v. Hills, 2021 IL App (4th) 200220-U, ¶ 2. We

affirmed the judgment of the trial court. Id. ¶ 49.

-4- ¶ 13 Defendant, through counsel, filed a postconviction petition alleging five claims of

ineffective assistance of trial counsel. Specifically, defendant alleged trial counsel was

ineffective in that he failed to (1) investigate Vogel’s opinion that J.A.W. suffered from PTSD by

consulting with a forensic psychologist to determine the validity of Vogel’s opinion, (2) properly

question the State’s expert about her opinion that J.A.W. suffered PTSD after being sexually

assaulted by defendant, (3) retain a forensic psychologist to interview J.A.W., (4) call a forensic

psychologist to testify at trial that J.A.W. was not suffering from PTSD and was exaggerating her

symptoms, and (5) introduce evidence of the effects of tramadol and alcohol, which do not

include “blacking out, unconsciousness, or memory loss.” Defendant alleged that each of these

five failures or omissions constituted deficient performance and that a reasonable probability

existed that the result of the proceeding would have been different but for each of these

deficiencies.

¶ 14 In the petition, defendant acknowledged Vogel’s opinion testimony that J.A.W.

suffered from PTSD was admissible under section 115-7.2 of the Code of Criminal Procedure of

1963 (725 ILCS 5/115-7.2 (West 2018)). With regard to defendant’s claim that his trial counsel

was ineffective for failing to consult a forensic psychologist concerning Vogel’s opinion that

J.A.W. suffered from PTSD, the petition alleged that if counsel had consulted with a forensic

psychologist, he would have discovered several problems with Vogel’s evaluation and report,

including (1) a lack of objectivity, (2) failure to perform objective tests, (3) lack of proper

credentials for interpreting psychological tests, (4) “failure to provide verbatim examples of

specific trauma-related symptoms” in the report, and (5) failure to use multiple sources of data in

reaching her clinical opinion. In his second claim, defendant alleged that if counsel had consulted

with a forensic psychologist, he would have been able to cross-examine Vogel concerning the

-5- deficiencies in her evaluation. Defendant alleged the case was closely balanced and depended on

J.A.W.’s credibility.

¶ 15 Defendant attached to his postconviction petition an opinion letter prepared by

forensic psychologist Tetyana Kostyshyna. In the letter, Kostyshyna indicated defendant’s

postconviction counsel requested that she review a report of J.A.W.’s examination by Vogel as

well as Vogel’s trial testimony to examine the appropriateness of Vogel’s methodology.

Kostyshyna stated she reviewed these documents and found the following deficiencies in

Vogel’s evaluation: (1) Vogel’s evaluation lacked objectivity because it did not include any tools

to assist Vogel in “controlling her bias”; (2) Vogel failed to use objective psychological tests or

structured clinical interviews, which assist in ensuring accuracy by measuring exaggeration of

symptoms, minimization of symptoms, and inconsistent reporting; (3) Vogel lacked proper

credentials for interpreting psychological tests; (4) J.A.W.’s verbatim examples of specific

trauma-related symptoms were missing from the report; and (5) Vogel relied solely upon a

partial clinical interview in making her diagnosis when multiple sources of information—e.g.,

structured clinical interviews, mental status examinations, psychological tests, and validity

measures—are required to reach a “confident clinical opinion.”

¶ 16 In addition, defendant attached to his petition a printout from healthline.com

concerning the side effects and uses of tramadol. The printout stated that common side effects of

tramadol included dizziness, headache, drowsiness, nausea and vomiting, constipation, lack of

energy, sweating, dry mouth, and itching. The printout also stated that the use of alcoholic

beverages can increase the risk of certain side effects from tramadol, including slowed breathing,

decreased heart rate, decreased blood pressure, and confusion.

-6- ¶ 17 The trial court entered an order summarily dismissing the postconviction petition.

The court stated that defendant’s direct appeal was the proper forum for all of his claims of

ineffective assistance of trial counsel and that collateral review was consequently not available

for defendant’s claims. This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, defendant argues the trial court erred in summarily dismissing his

postconviction petition because the court erroneously found defendant could have raised his

claims of ineffective assistance of counsel on direct appeal. Defendant further contends he stated

the gist of a constitutional claim with respect to all five of his claims of ineffective assistance of

counsel raised in the petition.

¶ 20 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) sets

forth a three-stage procedure for redressing substantial violations of a defendant’s constitutional

rights. People v. Allen, 2015 IL 113135, ¶¶ 20-21. At the first stage of postconviction

proceedings, the trial court independently reviews the postconviction petition and shall dismiss it

if it determines the petition is frivolous or patently without merit. People v. Boykins, 2017 IL

121365, ¶ 9; 725 ILCS 5/122-1(a)(1) (West 2020). If the petition is not summarily dismissed, it

advances to the second stage, where the court must determine whether the petition and

accompanying documentation make a substantial showing of a constitutional violation. People v.

Domagala, 2013 IL 113688, ¶ 33. If the defendant makes the requisite substantial showing of a

constitutional violation at the second stage, the matter advances to a third-stage evidentiary

hearing. Id. ¶ 34.

¶ 21 In the instant case, the postconviction petition was dismissed at the first stage of

postconviction proceedings. At this stage, the trial court may dismiss the petition as frivolous or

-7- patently without merit “only ‘if the petition has no arguable basis either in law or in fact’—

relying on ‘an indisputably meritless legal theory or a fanciful factual allegation.’ ” People v.

Allen, 2015 IL 113135, ¶ 25 (quoting People v. Hodges, 234 Ill. 2d 1, 16 (2009)). “The

allegations of the petition, taken as true and liberally construed, need only present the gist of a

constitutional claim.” People v. Brown, 236 Ill. 2d 175, 184 (2010). “This standard presents a

‘low threshold’ [citation], requiring only that the petitioner plead sufficient facts to assert an

arguably constitutional claim.” Id. “A postconviction petition alleging ineffective assistance of

counsel may not be dismissed at the first stage of the proceedings if: (1) counsel’s performance

arguably fell below an objective standard of reasonableness; and (2) the petitioner was arguably

prejudiced as a result.” Id. at 185.

¶ 22 A trial court may summarily dismiss a postconviction petition at the first stage on

the basis that the issues in the petition are procedurally defaulted because they could have been

raised on direct appeal but were not. People v. Harris, 224 Ill. 2d 115, 137 (2007). A defendant

must generally raise a claim of ineffective assistance of counsel on direct review or risk

forfeiting the claim. People v. Veach, 2017 IL 120649, ¶ 47. However, a defendant is not

precluded from raising an issue on collateral review that depended upon facts not found in the

record. Id. Accordingly, claims of ineffective assistance of counsel are better suited to collateral

proceedings “when the record is incomplete or inadequate for resolving the claim.” Id. ¶ 46.

¶ 23 Here, defendant’s postconviction petition met the low threshold of stating the gist

of a claim that his trial counsel was ineffective for failing to investigate Vogel’s opinion that

J.A.W. suffered from PTSD by consulting with a forensic psychologist. In the petition, defendant

asserted that if his counsel had consulted with a forensic psychologist, he would have discovered

five specified problems with Vogel’s evaluation and report. Defendant also alleged that counsel

-8- could have challenged Vogel’s evaluation by cross-examining her concerning these deficiencies.

In support of this claim, defendant attached to his petition Kostyshyna’s opinion letter, which

identified five deficiencies in Vogel’s evaluation. Defendant alleged that the evidence in the case

was closely balanced and the case turned on the credibility of J.A.W.

¶ 24 Based on the foregoing allegations in the petition and Kostyshyna’s letter, we find

trial counsel’s alleged failure to consult with a forensic psychologist concerning Vogel’s

evaluation arguably constituted performance falling below an objective standard of

reasonableness. It is also arguable that if defendant had been able to challenge the validity of

Vogel’s PTSD diagnosis by presenting evidence of the deficiencies in her examination or

through a stronger cross-examination, J.A.W. would have been viewed by the jury as a less

credible witness and the result of the proceeding would have been different.

¶ 25 In reaching our holding, we reject the position of both the trial court and the State

on appeal that defendant’s ineffective assistance claim could have been raised on direct appeal.

The claim was based on information not contained in the trial record—namely, Kostyshyna’s

opinion letter, which was procured by postconviction counsel after the trial proceedings had

concluded. Without this letter, defendant would not have been able to support his claim that he

was arguably prejudiced by his trial counsel’s failure to consult with a forensic psychologist

concerning Vogel’s report because there would have been no basis in the record for concluding

that there were any deficiencies in her evaluation. We find the trial record would have been

inadequate for resolving this claim of ineffective assistance of counsel on direct appeal, and thus

the claim was properly raised in a postconviction petition. See Veach, 2017 IL 120649, ¶ 47.

¶ 26 Because we have found that defendant stated the gist of a constitutional claim as

to one of the claims in the petition, we need not consider whether the other claims in the petition

-9- should have survived first-stage review. This is because partial summary dismissals are not

permitted. People v. Rivera, 198 Ill. 2d 364, 371 (2001). Rather, “if some claims are subject to a

dismissal at the first stage while others are not, the entire postconviction petition must be

docketed for second-stage proceedings.” People v. Johnson, 377 Ill. App. 3d 854, 858 (2007).

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we reverse the summary dismissal of defendant’s

postconviction petition and remand the matter for second-stage postconviction proceedings.

¶ 29 Reversed and remanded.

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